Exhibit 10.7
[***] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED FROM PUBLIC FILING PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT SUBMITTED TO THE U.S. SECURITIES AND
EXCHANGE COMMISSION. THE OMITTED INFORMATION, WHICH HAS BEEN
IDENTIFIED WITH THE SYMBOL “[***],” HAS BEEN FILED
SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
GEOTHERMAL RESOURCES
LEASE
(Minersville Land and
Livestock–Surface Lands Retained by
Lessor)
THIS GEOTHERMAL
RESOURCES LEASE (“Lease”), entered into this 25
th
day of September,
2007, by and between MINERSVILLE LAND AND LIVESTOCK COMPANY, a Utah
corporation (collectively, “Lessor”), and INTERMOUNTAIN
RENEWABLE POWER, LLC, a Delaware limited liability company
(“Lessee”).
1. INTEREST
GRANTED:
The interest granted hereunder is
in the geothermal resources estate, and Lessor shall retain the
surface estate. In addition, the parties believe that the Lessor
holds an undivided 75% interest in the geothermal resources estate,
with the remaining 25% (the “25% Interest”) held by the
successors and assigns of Superior Oil Company (per grant from
Ronald G.
Wilcox). Lessee shall be
responsible for coordinating with the holder of the 25% Interest in
leasing such interest. The Production Royalties payable under
Section 3(b) shall be proportionately reduced to the extent
that Lessor holds less than the full interest in the geothermal
estate (for example, 75% of the [***] and [***] Production
Royalties specified in Section 3(b) (i) ) . In the event
Lessor re-acquires the 25% Interest, such interest shall be deemed
to be leased to Lessee hereunder and the Production Royalties
increased accordingly. In
consideration of the covenants and agreements contained herein,
Lessor hereby grants and leases to Lessee the exclusive right and
privilege to drill for, extract, produce, remove, utilize, sell,
and dispose of all forms of thermal energy and other associated
geothermal resources including without limitation:
(1) all products of geothermal
processes, including the natural heat of the earth, and the energy,
in whatever form, including pressure, present in, resulting from,
created by, or which may be extracted from that natural heat,
directly or through a material medium together with indigenous
steam, hot water and hot brines; (2) steam and other gases,
hot water and hot brines resulting from water, gas, or other
fluids, including water and steam naturally present in a geothermal
system, artificially introduced into subsurface formations to serve
as a heat transfer medium; (3) natural heat of the earth and
the energy associated with that natural heat, and pressure; and
(4) all dissolved or entrained minerals, substances or
by-products (“Substances”) that may be obtained from
the medium used to transfer that heat, but excluding hydrocarbons
and helium (collectively “Geothermal Resources,” which
includes Substances except as necessary to separately determine
royalties as provided in Section 3),
in, on, under, adjacent to, or
associated with those certain parcels of property (the
“Premises”) consisting of approximately eleven thousand
two hundred and ninety-four (11,294) acres, as more
particularly described as follows :
All that certain real property
consisting of approximately 11,294 acres located in Beaver County,
State of Utah, more particularly described on Exhibit A attached
hereto and incorporated herein by reference, including all
interests in said Premises now owned or hereafter acquired,
together with:
(a) Exploration . The
exclusive right to conduct within the leased area geological and
geophysical exploration for Geothermal Resources;
(b) Development and
Operations . Subject to the approval of Lessor as to
location, not to be unreasonably withheld, the right to
construct or erect and to use, operate, and maintain on the
Premises, together with ingress and egress thereupon, all wells,
pumps, pipes, pipe lines, buildings, plants, sumps, brine pits,
reservoirs, tanks, waterworks, pumping stations, roads, electric
power generating plants, transmission lines, industrial facilities,
telephone lines, and such other works and structures and to use so
much of the surface of the land that may be reasonably necessary or
convenient for the exploration, development, production,
utilization, transportation, and processing of Geothermal Resources
or for the full enjoyment of the rights granted by this Lease,
subject to applicable laws and regulations;
(c) Water . The non-exclusive
right to drill water wells, and the exclusive right to drill wells
into Geothermal Resources that contain water, steam and brines, in
accordance with Utah statutory laws within the Premises and to use
the water produced therefrom for operations and activities
hereunder, free of costs, provided that such drilling and
development is conducted in such a way that they do not
unreasonably interfere with Lessor’s activities on the
Premises; and further that Lessor will use its best efforts to
cooperate with Lessee to apply for, appropriate and use water
produced from the Premises (or lands pooled or unitized therewith)
in furtherance of developing and conducting operations on the
Premises (or lands pooled or unitized therewith). Lessor and
Lessee shall evaluate the possibility of providing some water from
geothermal operations for use in livestock watering.
(d) Injection . The right,
without the payment of royalties hereunder, to inject or reinject
into the leased lands geothermal resources, condensates, gas,
treated wastewater or other fluids to the extent that such
resources, condensates and fluids are necessary or convenient for
operation under this Lease in the recovery or processing of
Geothermal Resources, including to maintain or increase pressure or
production or to conduct tests.
(e) Directional Drilling .
The right to locate a well or wells on the surface of said land and
to directional or slant drill said well or wells into, under,
across and through the Premises and into and under other lands in
the vicinity of the Premises, together with the right to repair,
re-drill, deepen, maintain, inject in, rework and operate or
abandon such well or wells for the production of Geothermal
Resources from such other lands together with the right to develop
water from said land for any of Lessee’s operations; together
with the right to construct, erect, maintain, use, operate,
replace, and remove all power generation facilities, transmission
facilities, pipe lines, telephone lines, tanks, machinery, and
other facilities; together with all other rights necessary or
convenient for Lessee’s operations under this subsection
including rights of way for passage over and upon and across and
ingress and egress to and from said Premises; together with the
right and easement to continue to use such items, as well as rights
of way and/or easements appurtenant thereto, so long as
Lessee
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utilizes Geothermal Resources from
such other land in the vicinity of the Premises, notwithstanding
the expiration, termination or forfeiture of this Lease, until such
use is permanently discontinued. Upon the written request of
Lessee, Lessor agrees to provide separate easements or
rights-of-ways, in form sufficient for recording in the applicable
county real property records, to evidence such surface rights in
this Section l(e). If the Lessor fails to provide such written
easements within thirty (30) days of Lessee’s written
request, Lessor authorizes Lessee to unilaterally prepare and
execute such easements and record the same in the applicable
county’s real property records. Should Lessee elect to
unilaterally execute such easements, the nature, scope and duration
of such easements as described in the executed document shall
accurately and reasonably reflect the existing uses in relation to
Lessee’s surface and underground operations on the Premises
(or on lands pooled and unitized therewith).
2. TERM:
(a) Initial Term, As Extended
. This Lease shall have a term of TEN (10) years from the date
first set forth above (the “Initial Term”) and shall
continue for so long thereafter as:
(i) Lessee is extracting or drilling
for Geothermal Resources on the Premises (or lands pooled or
unitized with the Premises), working with reasonable diligence,
allowing not more than TWENTY-FOUR (24) months between the
completion or abandonment of one site/well and the exploration
and/or commencement of operations for the next;
(ii) Geothermal Resources are being
produced or generated from the Premises (or lands pooled or
unitized with the Premises) in commercial quantities or steps are
being taken to develop the Premises in such a way as to produce or
generate from the land commercial quantities;
(iii) Remedial Operations are being
continuously conducted on the Premises (or lands pooled or unitized
with the Premises);
(iv) Drilling operations, commercial
production of Geothermal Resources, or Remedial Operations are
suspended or excused under the Force Majeure or other provisions of
this Lease; or
(vi) this Lease is otherwise
extended by its terms.
“Remedial Operations”
means reworking, redrilling, cleaning, testing, and the repair and
replacement of wells and facilities for the production or use of
Geothermal Resources. Remedial Operations shall be deemed
continuous so long as such operations do not cease for a period of
more than two (2) consecutive years. Production in
“commercial quantities” shall mean production in such
quantities of Geothermal Resources, produced, sold, or used, or
capable of being produced, sold, or used, either from the Premises
or lands pooled or unitized therewith, the value of which, after
deducting Lessor’s royalty hereunder and Lessee’s
normal operating costs will provide to Lessee a return of such
costs.
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(b) Unit Contraction . In the
event this Lease is committed to a unit or other pooling
arrangement, and this Lease is later removed from such unit by
contraction of the unit boundaries or any participating area while
the Lease is in an extended term beyond the Initial Term or within
five (5) years of the end of the Initial Term, then the
Initial Term of this Lease shall be extended for a period of five
(5) years from the date the Lease is removed from such unit or
other pooling arrangement. In the event of an extension pursuant to
this subsection (c), the Lessee is authorized to unilaterally
execute and record a notice of extension of the Lease, to provide
public notice of such extension.
3. RENTALS AND
ROYALTIES:
(a) Initial Payment; Rentals
. On the date hereof, and subject to confirmation of clear title to
the Geothermal Resources, Lessor shall pay to Lessee the sum of
[***]. On or before each anniversary date hereafter while the Lease
is in force, Lessee agrees to pay to Lessor as rental for the next
ensuing year the sum of [***] per acre; provided, however, that
rentals paid to Lessor under this subsection shall apply toward or
be credited to royalties payable or to become payable on actual
production (if any) under Section 3(b) for any year such
rentals are paid. To the extent a portion of the original acreage
of this Lease is lost or surrendered by the Lessee, the Annual
Rental shall be reduced proportionately.
(b) Production Royalties .
Subject to Section 11 below, and subject to proportionate
reduction as described in Section 1 and in Section 3(d),
Lessee shall pay to Lessor a royalty out of the proceeds received
by Lessee from the sale of Geothermal Resources or Substances
produced from the Premises, or allocated to the Premises as
provided in Sections 6 and/or 10(b) as follows:
(i) Power Generation . If
Lessee utilizes Geothermal Resources to generate and sell electric
power, a royalty of [***] of the gross proceeds of the sale of said
electric power for the first [***] years from the first sale
of electricity and [***] thereafter, in each case less Deductible
Costs (as defined in Section 3(b) (vi));
(ii) Sale of Substances . If
Lessee sells any Substances as such, a royalty of [***] of the
gross proceeds of the sale of said Substances for the first
[***] years from the first sale of Substances and [***]
thereafter, in each case less Deductible Costs;
(iii) Sale of By-Products .
If Lessee treats or processes or causes to be processed, any
Substances and/or Geothermal Resources for the extraction or
manufacture therefrom of any by-products, and sells any
by-products, a gross royalty of [***] of the proceeds from the
sale by Lessee of said by-products, less Deductible
Costs;
(iv) Other Commercial . If
Lessee uses Geothermal Resources and/or Substances at a commercial
facility other than an electric power generating facility, a
royalty of [***] of the net profits produced by such
commercial operation, net profits being the proceeds generated by
Lessee, less all associated costs to Lessee including but not
limited to any plant, facility and/or operational costs and of any
transmission or transportation to the point of use if used off the
Premises or off of any area pooled or unitized with the Premises
(the “Unit Area”), as the case may be.
4
(v) Internal Use . Lessee may
use, free of royalty, Substances, Geothermal Resources, electric
power and by-products developed from the Premises for all
operations hereunder (or operations within any Unit Area), and
Lessee shall not be required to account to Lessor for or pay
royalty on any Substances, Geothermal Resources, electric power or
by-products reasonably lost or consumed in operations
hereunder.
(vi) Deductible Costs . For
purposes of Sections 3(b)(i)-(iii) above, “Deductible
Costs” shall mean:
(A) any sales, excise or other taxes
imposed on the sale of any said electric power, Substances, or
by-products, as the case may be, so sold or which are required to
be included in or added to the sales price thereof or paid by the
seller; and
(B) any cost to Lessee of any
transmission or transportation to the point of sale of any of said
electric power, Substances or by-products so sold, if sold off the
Premises or the Unit Area, as the case may be; and
(C) assuming Lessee does not use
electricity generated from the geothermal plant(s) for such
requirements, the reasonable and standard cost of any electricity
purchased by Lessee from unaffiliated third parties to operate the
geothermal well field pumps or serve other parasitic loads of the
geothermal gathering field or the generating plant(s).
(vii) Payment . Lessee shall
pay Lessor, on or before the last day of each and every calendar
month, the above production royalties accrued and payable for the
preceding calendar month (“Payment Date”), and shall
deliver to Lessor a statement setting forth the basis for the
determination of such royalty. Notwithstanding anything to the
contrary, Lessor agrees that the Payment Date shall be adjusted to
coincide with billing procedures set forth in any applicable power
purchase agreements, whether monthly, bi-monthly, quarterly, or
otherwise.
(c) Directional Drilling and
Other Surface Use Rentals . If Lessee exercises the directional
drilling rights granted in Section 1(e), or if Lessee is using
part of the surface of the Premises for unit or other operations
and the Lease is terminated or surrendered (including without
limitation, in the event the Lease is committed to a unit but is
later excluded from such unit by contraction of the unit or any
participation area) Lessor shall not be entitled to any production
royalties under Section 3(b), unless, and only to the extent
that, such activity constitutes a commingling, pooling or
unitization utilizing Geothermal Resources from the Premises under
Section 6. In lieu of any other compensation, Lessee shall pay
to Lessor an annual rental computed at the rate of [***] per acre
for each surface acre of the Premises being exclusively occupied by
Lessee pursuant to such grant under Section 1(e) and [***] per
rod for any roads, utility lines, pipelines, or other linear items
associated therewith.
(d) Proportionate Reduction .
In the event Lessor at the time of making this Lease owns an
interest in the leased Premises that is less than one hundred per
cent of the total rights in the geothermal estate, then the
rentals, royalties and other consideration
5
accruing hereunder shall be paid to Lessor only
in the same proportions which Lessor’s interest bears to a
one hundred per cent interest in the leased Premises.
Notwithstanding the foregoing, should Lessor hereafter acquire any
additional right, title or interest in or to the leased Premises,
it shall be subject to the provisions hereof to the same extent as
if owned by the Lessor at the date hereof, and any increase in
payments of money hereunder necessitated thereby shall commence
with the payment next following receipt by Lessee of satisfactory
evidence of Lessor’s acquisition of such additional
interest.
4. TAXES AND
ASSESSMENTS:
(a) Taxes and Improvements .
Lessee shall pay all taxes levied and assessed against
Lessee’s leasehold interest in the Premises. Lessee shall pay
all taxes levied and assessed against all structures, improvements
and personal property placed upon the Premises by Lessee. Lessor
shall pay all taxes levied and assessed against the Premises as
such and against any rights thereto not covered by the Lease and
shall pay all taxes levied and assessed against all structures and
improvements placed on the Premises by Lessor. Any increase in
taxes arising from geothermal operations on the Premises shall be
paid by Lessee.
(b) Severance Taxes on
Lessor’s Royalties . Lessor agrees to pay any and all
taxes assessed upon Lessor’s royalty proceeds for any
Substances and/or Geothermal Resources produced and sold by Lessee
from the Premises and ad valorem taxes on Substances and/or
Geothermal Resources 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
Substances and/or Geothermal Resources from or allocated to the
Premises, and to pay all of any other taxes assessed against the
Premises, whether the same are assessed to Lessor or Lessee or
otherwise. Lessor shall pay all of its tax obligations within
thirty (30) days of when due and shall provide Lessee, upon
request, with evidence of such payment. Lessor grants Lessee the
right, but not the obligation, to pay any of Lessor’s tax
obligations hereunder, and to offset the amount of such payments
made on Lessor’s behalf against any amounts due to Lessor
under this Lease, with interest at [***].
5. PROTECTION OF SURFACE; LAWS;
LIENS; EQUIPMENT
(a) Protection of Surface;
Compensation for Damage . Lessee agrees to conduct its
activities in a good and workmanlike manner and use reasonable care
at all times in all of Lessee’s operations on the Premises to
prevent injury or damage to cattle, livestock, buildings, water
rights, water diversion works, ditches, tanks and water wells or
other property of the Lessor located thereon; and Lessee agrees
to repair, mitigate or pay the Lessor the fair market value (as
determined by an independent third-party appraiser) for all damages
to the cattle, crops, buildings, livestock, fences, water rights,
water diversions, ditches, tanks, water, water wells and other
property of the Lessor situated on the surface of the Premises
resulting from Lessee’s operations on the Premises. Lessee
also agrees that all damages to pipe and equipment caused by cattle
shall be the responsibility of Lessee.
(b) Compliance with Laws .
Lessor and Lessee each agree that they will conduct all activities
and operations associated with the Premises and with this Lease at
all times in accordance with applicable federal, state and local
laws, rules and regulations.
6
(c) Liens . All labor to be
performed and material to be furnished in the operations under this
Lease shall be at the sole cost and expense of Lessee, and Lessee
shall hold Lessor free and harmless from liability thereunder.
Lessee and Lessor shall each keep the Premises fully protected
against any and all liens of every character arising from or
connected with their individual operations on the Premises. Lessor
agrees not to permit any mortgage or other lien to be placed on the
property that would affect or purport to affect or supersede
Lessee’s interest under this Lease. Lessor acknowledges and
agrees that Lessee, in order to pursue its activities hereunder may
utilize various project, equipment and other financing options and
as part of such financings Lessee may assign its interests under
this Lease (whether for security purposes or as a full and complete
assignment). To the extent the Premises are currently encumbered by
a mortgage, deed of trust, or other lien created by Lessor, Lessor
shall use its best efforts to obtain a subordination, in recordable
form, of such encumbrance to this Lease.
(d) Reclamation . Within six
(6) months after abandonment of any well, including those
abandonments resulting from termination of this Lease, Lessee shall
remove all machinery, material, and structures used in connection
with said well and not used in its other operations, if any, on the
Premises, and shall fill in and level off all excavations, pits, or
other alterations to the surface of the Premises caused in
connection with said well, and, insofar as practical, shall,
restore the Premises and the means of ingress and egress in
compliance with all requirements of applicable reclamation laws and
regulations, except reasonable wear and tear, acts of nature and
conditions beyond the control of Lessee.
(e) Equipment and
Improvements . Lessor agrees that Lessee shall retain ownership
of, and can remove at any time, any and all improvements,
equipment, fixtures and property of any kind brought onto or
attached or affixed to the Premises, including all well casings,
pipes, power generation equipment, buildings, transmission lines
and all other equipment or property of any kind, regardless of
whether such property is considered realty or personalty for state
law or other purposes.
6. COMMINGLING, POOLING, AND
UNITIZATION:
(a) Commingling . Lessee
shall have the right to commingle (for purposes of storing,
transporting, handling, unitizing, selling or processing)
Geothermal Resources produced or extracted from the Premises (and
lands pooled, unitized or combined therewith), with similar
substances produced or extracted from other lands or units. In the
event of such commingling, Lessee shall meter, gauge, or measure,
according to prevalent industry standards, the production from the
Premises at the well head, or from the unit or units including the
leased land or other units or lands, as applicable, and compute and
pay Lessor’s royalty attributable to Lessor’s land on
the basis of such production as so determined or
allocated.
(b) Pooling and Unitization .
Lessee may, without notice to or consent from Lessor, as a
recurring right for drilling, development or operating purposes,
pool, unitize, or otherwise combine all or part of the Premises
into a unit (whether federal or voluntary contractual unit) with
any other land or lands (whether held by Lessee or others), whether
or not adjacent or contiguous,
7
which Lessee desires to develop or operate
(singly or in combination with others) as a unit. The execution by
Lessee of any unit agreement, unit operating agreement or other
documents necessary to such pooling or unitization shall be binding
on the Premises and Lessor’s current and future interests
therein. Lessee shall provide Lessor courtesy notice of any pooling
or unitization of the Premises. Any well (whether or not
Lessee’s well) commenced, drilled, drilling and/or producing
or being capable of producing in any part of such unit shall for
all purposes of this Lease be deemed a well commenced, drilled,
drilling and/or producing on the Premises, and the Lessee shall
have the same rights and obligations with respect thereto and the
drilling and producing operations upon the lands from time to time
included within any such unit as Lessee would have if such lands
constituted the Premises leased hereunder; provided, however, that
notwithstanding this or any other provision or provisions of this
Lease to the contrary:
(i) Production as to which a royalty
is payable from any such wells or wells drilled upon any such unit,
whether located on the Premises or other lands, shall be allocated
to the Premises in the proportion that the acreage of the leased
land in such unit bears to the total acreage of such unit. Such
allocated portion thereof shall for all purposes be considered as
having been produced from the Premises, and the royalty, payable
under this Lease with respect to the leased land in such unit shall
be payable only upon that proportion of production so allocated,
and
(ii) If taxes of any kind are levied
or assessed (other than taxes on the surface and on Lessor’s
improvements), any portion of which is chargeable to Lessor under
the provisions of this Lease, then the share of such taxes to be
borne by Lessor shall be in proportion to the share of the
production from such unit allocated to the Premises.
(iii) Lessor hereby grants Lessee
(or the consents to the assignment of such rights from Lessee to
any unit operator) the right to use of the surface of the Premises
in support of unit operations, including all the surface uses
enumerated in Section 1 above. In the event the Premises, or
any portion thereof, are later removed from the unit by any
contraction of the Unit Area, all such existing surface uses of the
Premises in support of unit operations shall continue in force and
effect, and Lessor agrees to provide Lessee or the unit operator
with written easements, rights-of-way, licenses or such other
acceptable surface use grants, in recordable form, to evidence such
existing surface uses in support of unit operations. If the Lessor
fails to provide such written easements within thirty
(30) days of Lessee’s written request, Lessor authorizes
Lessee to unilaterally prepare and execute such easements and
record the same in the applicable county’s real property
records. Should Lessee elect to unilaterally execute such
easements, the nature, scope and duration of such easements as
described in the executed document shall accurately and reasonably
reflect the existing uses in relation to Lessee’s surface and
underground operations on the Premises (or on lands pooled and
unitized therewith).
8
7. RESERVATIONS TO
LESSOR:
The following rights (to the extent
owned by Lessor) are reserved to Lessor, provided such rights and
activities do not interfere with Lessee’s exploration,
development, production or other operations, activities or rights
hereunder on the Premises or any Unit Area:
(i) Surface Use - the right
to conduct ranching operations, or sell or otherwise dispose of the
surface of the Premises (subject to this Lease) in a lawful manner.
Any specific restrictions on the prospective use of the Premises by
Lessee, as a result of specific surface needs of the Lessor, may be
set forth in an Appendix to this Lease.
(ii) Mineral Rights - the
right to extract minerals, hydrocarbons, and helium (other than
Substances) from the Premises, subject to the following covenants
and restrictions:
Notwithstanding the reservation of
mineral rights to the Lessor, Lessor and Lessee acknowledge that
Lessee shall make substantial investments in exploring for and
developing geothermal resources on the Premises (or Unit Area).
“Lessor hereby covenants and agrees, on behalf of itself, its
successor