Exhibit 10.6
(6/22/05)
MINERAL LEASE NO. ML
50773
GRANT: SCH: 1920.00
UTAH STATE MINERAL LEASE
FORM
GEOTHERMAL
STEAM
THIS MINING LEASE AND AGREEMENT (the
“Lease”) is entered into and is effective as of APRIL
1, 2007, by and between the STATE OF UTAH, acting by and through
the SCHOOL AND INSTITUTIONAL TRUST LANDS ADMINISTRATION,
675 East 500 South, Suite 500, Salt Lake City, Utah 84102
(“Lessor”), and
INTERMOUNTAIN RENEWABLE POWER,
LLC
5152 NORTH EDGEWOOD DRIVE
SUITE 375
PROVO, UT 84604
having a business address as shown
above (“Lessee”).
WITNESSETH:
That the State of Utah, as Lessor,
in consideration of the rentals, royalties, and other financial
consideration paid or required to be paid by Lessee, and the
covenants of Lessee set forth below, does hereby GRANT AND LEASE to
Lessee the exclusive right and privilege to explore for, drill for,
mine, remove, transport, convey, cross-haul, commingle, and sell
the leased substances covered by this lease and located within the
boundaries of the following-described tract of land (the
“Leased Premises”) located in BEAVER County, State of
Utah:
T30S, R12W,
SLB&M.
SEC.
13: LOTS 3(35.70), 4(35.74), W
1 / 2 SE 1 / 4 , SW 1 / 4
SEC.
14: S 1
/
2
SEC.
26: NW 1
/
4 , S 1
/
2
SEC.
28: E 1
/
2 NE 1
/
4 , NE 1 / 4 NW 1 / 4
SEC.
29: S 1
/
2 SW 1
/
4 , NW 1 / 4 SW 1 / 4
SEC.
30: LOTS 1(40.22), 2(40.20), 3(40.16),
4(40.14), N 1 / 2 NE 1 / 4 , SW 1 / 4 NE 1 / 4 , E 1 / 2 NW 1 / 4 , N 1 / 2 SE 1 / 4
SEC.
32: E 1
/
2 , NW 1 / 4
Containing 2272.16 acres, more or
less.
Together with the right and
privilege to make use of the surface and subsurface of the Leased
Premises for uses reasonably incident to the mining of leased
substances by Lessee on the Leased Premises or on other lands under
the control of Lessee or mined in connection with operations on the
Leased Premises, including, but not limited to, conveying, storing,
loading, hauling and otherwise transporting leased substances;
excavating; removing, stockpiling, depositing and redepositing of
surface materials; developing and utilizing mine portals and
adjacent areas for access, staging and other purposes incident to
mining; and the subsidence, mitigation, restoration and reclamation
of the surface.
Generic Mineral Lease Form
6/22/05
Page No. 2
This Mining Lease and Agreement is
subject to, and Lessee hereby agrees to and accepts, the following
covenants, terms, and conditions:
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1.1
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Geothermal
Steam , as Classified and
defined in Utah Administrative Code R850-27-100
(collectively “leased substances”). This mineral lease
grants Lessee the right, subject to the terms and conditions set
forth herein, to extract the leased substances. In the event that
minerals or materials other than the leased substances are
discovered during lease operations, Lessee shall promptly notify
the Lessor and shall not further disturb or remove the other
minerals or materials without Lessor’s written permission.
Upon notifying Lessor of such discovery the Lessee shall have
preference in making application to the Lessor for a lease or
permit covering the unleased minerals or materials that are
discovered.
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1.2
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Ore From
Adjacent Lands; Transport Fee, Process Fee . Lessee may use mine workings, portals and ore
processing facilities located on the Subject Property to transport
or process ore extracted from non-state lands adjacent to or nearby
the Subject Property. As a condition of Lessor’s consent to
such use of the Subject Property, Lessee shall pay Lessor a fee per
ton of ore attributable to non-state lands that is removed from
portals located on the Subject Property and transported offsite or
processed on site. Lessee shall also pay Lessor a fee per ton of
any other ore that is mined from non-state lands and is transported
to the Subject Property for processing at a facility located upon
the Subject Property. Said transport or process fee per ton shall
be paid at One-half the leased substances royalty rate as contained
in Paragraph 6 of this lease. Lessee shall maintain separate
stockpiles of ore removed from the Subject Property and ores
attributable to non-state lands, and shall not commingle such ores.
For purposes of this paragraph, weight of ores shall be the
“dry weight,” determined by taking moisture content
measurements, and deducting the average moisture from the ore
weight, measure at the point of receipt at the mill or other
processing facility. For all ore subject to the transport or
process fee that is transported for milling or processing during a
particular month, Lessee shall pay transport or process fees to
Lessor on or before the end of the next succeeding month. Transport
or process fees shall be accounted for separately on the monthly
royalty settlement sheet required to be submitted by Lessee
pursuant to paragraph 6.4, Royalty Payment.
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1.3
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No Warranty
of Title . Lessor claims
title to the mineral estate covered by this Lease. Lessor does not
warrant title nor represent that no one will dispute the title
asserted by Lessor. It is expressly agreed that Lessor shall not be
liable to Lessee for any alleged deficiency in title to the mineral
estate, nor shall Lessee become entitled to any refund for any
rentals, bonuses, or royalties paid under this Lease in the event
of title failure.
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2.
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RESERVATIONS
TO LESSOR . Subject to
the exclusive rights and privileges granted to Lessee under this
Lease, and further provided that Lessor shall refrain from taking
actions with respect to the Leased Premises that may unreasonably
interfere with Lessee’s operations, Lessor hereby excepts and
reserves from the operation of this Lease the following rights and
privileges (to the extent that Lessor has the right to grant such
rights and privileges):
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2.1
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Rights-of-Way and Easements
. Lessor reserves the right,
following consultation with the Lessee, to establish rights-of-way
and easements upon, through or over the Leased Premises, under
terms and conditions that will not unreasonably interfere with
operations under this Lease, for roads, pipelines, electric
transmission lines, transportation and utility corridors, mineral
access, and any other purpose deemed reasonably necessary by
Lessor.
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Generic Mineral Lease Form
6/22/05
Page No. 3
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2.2
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Other
Mineral Leases . Lessor
reserves the right to enter into mineral leases and agreements with
third parties covering minerals other than the leased substances,
under terms and conditions that will not unreasonably interfere
with operations under this Lease in accordance with Lessor’s
regulations, if any, governing multiple mineral
development.
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2.3
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Use and
Disposal of Surface . To
the extent that Lessor owns the surface estate of the Leased
Premises and subject to the rights granted to the Lessee pursuant
to this Lease, Lessor reserves the right to use, lease, sell, or
otherwise dispose of the surface estate or any part thereof,
provided that any such actions will not unreasonably interfere with
operations under this Lease. Lessor shall notify Lessee of any such
sale, lease, or other disposition of the surface estate.
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2.4
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Rights Not
Expressly Granted .
Lessor further reserves all rights and privileges of every kind and
nature, except as specifically granted in this Lease, provided that
any actions under such reservations will not unreasonably interfere
with operations under this Lease.
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3.
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TERM OF
LEASE; MINIMUM ROYALTIES; READJUSTMENT .
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3.1
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Primary
Term . This Lease is
granted for a “primary term” of ten (10) years
from the date hereinabove first written.
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3.2
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Extension
Beyond Primary Term By Production . Subject to Lessee’s compliance with the
other provisions of this Lease, this Lease shall remain in effect
beyond the primary term so long as leased substances are being
produced in paying quantities, as defined herein, from the Leased
Premises, or from lands constituting a mining unit as approved by
Lessor in its reasonable discretion. For purposes of this lease,
production of leased substances in paying quantities shall mean the
mining and sale of the leased substances during the lease-year in
an amount sufficient to cover all operating expenses accruing to
the lessee pursuant to the leasehold for that lease year, including
the payment of all taxes and the payment of rentals and royalties
accruing to the Lessor.
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3.3
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Extension
Beyond Primary Term By Diligent Development, Financial Investment
and Minimum Royalty . In
the absence of actual production in paying quantities as set forth
in paragraph 3.2, Extension Beyond Primary Term, this Lease shall
remain in effect beyond the primary term only if the Lessee is
engaged in diligent operations, exploration or development
activity, as well as making a substantial financial investment,
which in Lessor’s sole discretion is calculated to advance
development or production of leased substances from the Leased
Premises or lands constituting a mining unit as approved by the
Director which includes the Leased Premises, and Lessee pays the
annual minimum royalty set forth in Paragraph 3.4, Minimum Royalty,
in advance, on or before the anniversary date of the date first
written hereinabove.
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3.4
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Minimum
Royalty . Commencing with
the n/a year of this lease Lessee shall pay Lessor an annual
minimum royalty, in advance, on or before the Effective Date and
each anniversary thereof. The advance annual minimum royalty shall
be in the amount of $ n/a. Lessee may credit each
lease-year’s minimum royalty payment against actual
production royalties accruing during that lease year, but such
credit shall not carry over beyond the lease year in which the
advance royalty was paid. Minimum royalties may not be credited
against the annual rentals or bonus bids.
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Generic Mineral Lease Form
6/22/05
Page No. 4
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3.5
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Expiration;
Cessation of Production .
This Lease may not be extended pursuant to paragraph 3.3, Diligent
Operations, beyond the end of the twentieth year after the
Effective Date except by the actual production of leased substances
in commercial quantities from the Leased Premises or from lands
constituting an approved mining unit which includes the Leased
Premises, or except by suspension of the Lease pursuant to Article
17.3, unless otherwise specifically approved in writing by the
Director of the Trust Lands Administration in the interest of the
trust beneficiaries. After expiration of the primary term, this
Lease will expire of its own terms, without the necessity of any
notice or action by Lessor, if: (a) Lessee fails to produce
leased substances in accordance with Article 3.2; (b) Lessee
ceases to engage in exploration, development, or operations or
fails to pay annual advance minimum royalties in accordance with
Article 3.4; or, (c) the Director fails to make a written
determination that it is in the interest of the trust beneficiaries
to extend this lease.
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3.6
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Readjustment . At the end of the primary term and at the end
of each period of ten (10) years thereafter
(“Readjustment Period”), Lessor may exercise its option
to readjust the terms and conditions of this Lease (including,
without limitation: rental rates, minimum royalties, royalty rates,
valuation methods, and provisions concerning reclamation). Notice
of intent to exercise the right to readjust is timely given by
Lessor if mailed prior to the end of the Readjustment Period to the
last address set forth for Lessee in Lessor’s files. Lessor
shall have up to one year after exercising its option to readjust
to review and communicate in writing the final readjusted terms of
the lease. If within thirty (30) days after submission of the
readjusted lease terms to the Lessee, the Lessee determines that
any or all of the proposed readjusted terms and conditions are
unreasonable, then Lessee shall so notify Lessor in writing and the
parties, acting reasonably, shall attempt to resolve the
objectionable term or condition. If the parties are unable, acting
reasonably, to resolve the matter and agree upon the readjusted
terms and conditions as submitted by Lessor at the end of the
Readjustment Period, Lessee shall forfeit any right to the
continued extension of this lease, and the lease shall
automatically terminate, provided that nothing herein shall be
deemed to preclude Lessee from appealing any readjustment by Lessor
pursuant to applicable law.
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4.
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BONUS
BID . Lessee agrees to
pay Lessor an initial bonus bid in the sum of n/a dollars as
partial consideration for Lessor’s issuance of this Lease,
payable in cash prior to execution of this lease. The initial bonus
bid may not be credited against annual rentals, annual minimum
royalties or production royalties accruing pursuant to this
lease.
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5.
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RENTALS/MINIMUM RENTALS . Lessee agrees to pay Lessor an annual rental
of $1.00 for each acre and fractional part thereof within the
Leased Premises; provided however, the minimum annual rental
required by this lease shall be $500.00 irrespective of acreage.
Lessee shall promptly pay annual rentals each year in advance on or
before the anniversary date of the Effective Date. The rental
payment for a mineral lease year may be credited against production
royalties only as they accrue for that lease year. The Lessee may
not credit rentals paid for one lease year against production
royalties accruing to another lease year. Rental payments may not
be credited against minimum royalties or bonus bids accruing to any
lease year.
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Generic Mineral Lease Form
6/22/05
Page No. 5
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6.1
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Production
Royalties . Lessee shall
pay Lessor a production royalty on the basis of 10% of the Gross
Value, f.o.b. the mine, of the leased substances sold under an
arm’s length transaction, bona fide contract of sale or $ n/a
per short ton, whichever amount is greater. For purposes of this
lease the Gross Value of the leased substances shall mean the
actual compensation received by the Lessee, or any affiliated
entity, on the basis of U.S. Dollars, including all payments,
bonuses and allowances, received plus the value of all services,
payments in kind and all other compensation whether monetary or
non-monetary, received by the Lessee from the buyer or from other
parties for the sale or disposal of the leased
substances.
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6.2
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Non-Arms
Length Transactions . In
the event that Lessee uses, sells or otherwise disposes of leased
substances without a non-arm’s-length contract or bill of
sale, Lessee shall promptly notify Lessor of such use, sale or
disposal. The Director may then determine and assign the Gross
Value to the leased substances for royalty purposes after taking
into account spot market prices, the value of similar or like
leased substances reported by other trust lands lessees, the value
of like mineral commodities as reported by the United States
Geological Survey, and other pertinent economic data regarding the
fair market value of the leased substances, f.o.b. the
mine.
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6.3
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No
Deductions . It is
expressly understood and agreed that none of Lessee’s mining,
production or processing costs, including but not limited to costs
for materials, labor, overhead, distribution, transportation f.o.b.
mine, loading, crushing, processing, or general and administrative
activities, may be deducted in computing Lessor’s royalty.
All such costs shall be entirely borne by Lessee and are
anticipated by the rate of royalty set forth in this
Lease.
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6.4
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Royalty
Payment . For all leased
substances that are sold or transported from the leased lands
during a particular month, Lessee shall pay royalties to Lessor on
or before the end of the next succeeding month. Royalty payments
shall be accompanied by a verified statement, in a form approved by
Lessor, stating the amount of leased substances sold or
transported, the gross proceeds accruing to Lessee, and any other
information reasonably required by Lessor to verify production and
disposition of the leased substances or leased substances products.
Delinquent royalties may be subject to late fees and penalties in
accordance with Lessor’s Rules.
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6.5
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Suspension,
Waiver or Reduction of Rents or Royalties . Lessor, to the extent not prohibited by
applicable law, is authorized to waive, suspend, or reduce the
rental or minimum royalty, or reduce the royalty applicable with
respect to the entire Lease, whenever in Lessor’s sole
judgment it is necessary to do so in order to promote development,
or whenever in the Lessor’s sole judgment the Lease cannot be
successfully operated under the terms provided herein and continued
operations are in the trust land beneficiaries best
interest.
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7.
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RECORDKEEPING; INSPECTION; AUDITS
.
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7.1
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Registered Agent;
Records . Lessee shall
maintain a registered agent within the State of Utah to whom any
and all notices may be sent by Lessor and upon whom process may be
served. Lessee shall also maintain an office within the State of
Utah containing originals or copies of all maps, engineering data,
permitting materials, books, records or contracts (whether such
documents are in paper or electronic form) generated by Lessee that
pertain in any way to leased substances production, output and
valuation; mine operations; assays; processing returns; leased
substances sales and dispositions; and calculation
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Generic Mineral Lease Form
6/22/05
Page No. 6
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of royalties from the Leased
Premises. Lessee shall maintain such documents for at least seven
years after the date of the leased substances production to which
the documents pertain.
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7.2
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Inspection . Lessor’s employees and authorized agents
at Lessor’s sole risk and expense shall have the right to
enter the Leased Premises to check scales as to their accuracy, and
to go on any part of the Leased Premises to examine, inspect,
survey and take measurements for the purposes of verifying
production amounts and proper lease operations. Upon reasonable
notice to Lessee, Lessor’s employees and authorized agents
shall further have the right to audit, examine and copy (at
Lessor’s expense) all documents described in paragraph 7.1,
Registered Agent; Records, whether such documents are located at
the mine site or elsewhere. Lessee shall furnish all conveniences
necessary for said inspection, survey, or examination; provided,
however, that such inspections shall be conducted in a manner that
is in conformance with all applicable mine safety regulations and
does not unreasonably interfere with Lessee’s
operations.
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7.3
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Geologic
Information . In the
event Lessee conducts core-drilling operations or other geologic
evaluation of the Leased Premises, Lessor may inspect core samples,
evaluations thereof, and proprietary geologic information
concerning the Leased Premises. Upon request by Lessor, Lessee
shall timely provide Lessor with a true and correct copy of all
such evaluations, geological reports, drilling logs, assays and
interpretive maps of the leased substances within the leased
lands.
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7.4
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Confidentiality . Any and all documents and geologic data
obtained by Lessor through the exercise of its rights as set forth
in paragraphs 7.2, Inspection., and 7.3, Geologic Information., may
be declared confidential information by Lessee, in which event
Lessor and its authorized agents shall maintain such documents and
geologic data as protected records under the Utah Governmental
Records Access Management Act or other applicable privacy statute,
and shall not disclose the same to any third party without the
written consent of Lessee, or as required under the order of a
court of competent jurisdiction requiring such disclosure, provided
that Lessor’s obligations of confidentiality to Lessee shall
cease upon termination of this Lease.
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8.
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USE OF
SURFACE ESTATE .
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8.1
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Lessor-Owned
Surface . If Lessor owns
the surface estate of all or some portion of the Leased Premises,
at the time of the execution of this Lease, by issuance of this
Lease the Lessee has been granted the right to make use of such
lands to the extent reasonably necessary and expedient for the
economic operation of the leasehold. Lessee’s right to
surface use of Lessor-owned surface estate shall include the right
to subside the surface. Such surface uses shall be exercised
subject to the rights
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