MINERAL LEASE Prepared by: BPI Industries, Inc. Marion, Illinois 62959
Exhibit 10.12
Prepared by: |
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BPI Industries, Inc. |
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000 Xxxx XxXxxxx Xxxxxx |
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Xxxxxx, Xxxxxxxx 00000 |
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This Mineral Lease (herein “this Lease”) is made and entered into this 9th day of
September, 2006, by and between THE COUNTY OF WASHINGTON OF THE STATE OF ILLINOIS, Washington
County Courthouse, Xxxxxxxxx, Xxxxxxxx 00000 (herein the “Lessor”), and BPI ENERGY, INC., of 00 X.
Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000, (herein the “Lessee”).
THIS INDENTURE WITNESSETH:
1. The Lessor, for and in consideration of Ten Dollars and other valuable consideration, the
receipt of which is hereby acknowledged, and for and in consideration of the covenants and
agreements herein provided on the part of the Lessee, has granted, demised, leased, and let, and by
these presents does grant, demise, lease and let unto Lessee, all of Lessor’s title and interest,
but only to the extent in fact actually legally owned or held by Lessor, in the Coal Bed Gas (as
herein defined) and the Oil and Gas (as herein defined) underlying the following described land:
See Attached Exhibit For Legal Descriptions
“Coal Bed Gas” shall mean herein all coal bed methane, coal seam gas, all gas desorbed from
coal or captured in the coal seam, all gas produced from abandoned mines, void spaces, and zones in
communication therewith and all associated hydrocarbons contained therein, with the right to
investigate, explore, drill, operate, produce, save, take care of, treat, process, and transport,
and market the Coal Bed Gas.
“Oil and Gas” shall mean all oil, liquid hydrocarbons, gases, and their constituent produces
except for Coal Bed Gas together with the right to investigate, explore, drill, operate, produce,
save, take care of, treat, process, and transport and market the Oil
and Gas.
Lessor excludes and expressly reserves the right to explore for, mine, operate, produce,
remove or market coal and other hard minerals. It being distinctly understood and agreed that the
mining and removal of coal by any method, now known or which may hereafter be developed, and the
transportation thereof to market is of prime importance to Lessor and that the coal measures and
seams in, upon and under said lands and the mining, removal, and transportation thereof, are, and
shall continue to be, the dominant estate and the coal bed methane estate therein and the
extraction, mining, removal and transportation thereof are made servient thereto. To that end,
Lessor particularly reserves the right to enter into coal mining leases without the concurrence of
Lessee and Lessee in its operations shall not interfere or conflict with the operations of any of
said coal mining lessees, sublessees, assignees or other contractors under their respective leases
or contracts relating thereto whether such coal mining leases are in effect prior to or subsequent
to the effective date of this mineral lease, with each coal mining lessee having the absolute right
to terminate, suspend, idle, modify or continue its coal mining operations in accordance with its
respective agreements with Lessor, without liability for loss or damage to Lessee.
Any Coal Mining Lessees shall have the right to mine through any coalbed methane well when
necessary for the conducting of its mining activity. At least 90 days prior to mining within 200
feet of any coalbed methane well, any Coal Mining Lessee shall notify the Lessee in writing if the
well must be plugged for mine through. The lessee, at its sole cost, will plug said well within 90
days of receipt of such written notice.
If a well is not required to be plugged for mine-through, but mining is to occur within 100
feet of the wellbore, any Coal Mining Lessee shall so notify Lessee in writing 90 days prior to
mining within 100 feet of the well and within said 90 day period Lessee shall, at it own expense,
temporarily plug the well at a point below the seam being mined but above the next lower coalbed
methane producing zone and the well will be vented to the atmosphere until mining has passed. Upon
the Coal Mining Lessee’s operations proceeding at least 200 feet past the well, the Lessee, at its
expense, shall, if practicable remove the temporary plug and attempt to restore production from the
well. Lessee agrees to comply with all local, state and federal regulations.
For purposes of this lease, Coal Bed Gas and Oil and Gas may jointly be referred to as
“Minerals.”
2. For the same consideration as set forth above, Lessor grants, demises, leases, and lets to
Lessee the right (a) to use the seismograph and other geophysical and geological methods of
exploration; (b) to inject gas, water, and other fluids and air into the subsurface strata; (c) to
lay
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pipelines, establish and utilize facilities for the disposition of produced substances; (d) to
build roads, bridges, tanks, utility lines, power stations and other structures; (e) to undertake
recovery by primary and secondary or other methods; (f) to have the right of ingress and egress as
to lands described herein or other lands under lease to Lessee; and (g) to utilize the surface to
the extent of Lessor’s title for all purposes as described herein.
3. This Lease shall and does include all lands and interest therein contiguous to or
appurtenant to the lands specifically described herein, and owned or claimed by Lessor including
all interest in which Lessor has a preferential right of acquisition or acquires by reversion or
otherwise, whether or not specifically described herein. This Lease shall also include all lands
underlying all alleys, streets, roads or highways and if the land is riparian to, bounds, or
embraces within its boundaries a stream, lake, or other body of water, then all of Lessor’s
interest in the lands under said bodies of water and all area now or hereafter added by accretion.
This Lease shall cover all interest in the lands covered hereby now owned or hereafter vested in or
claimed by Lessor.
4. This Lease shall remain in force for a primary term of five (5) years from the date hereof
and as long thereafter as Minerals, or any of them, are being produced from the lands described
herein or land with which said land is pooled or unitized.
(a) It is agreed that all acreage covered by this lease which is not drilled on or “earned” by
the Lessee during the primary term set out herein will be released by Lessee at the end of the
primary term. Said release will be in writing and recorded in the office of the recorder of
Washington County, Illinois and shall designate by legal description all acreage that is to be
released and all acreage that is held by production. It is agreed that each vertical well drilled
by Lessee will “earn” and hold 320 acres and each horizontal well drilled will “earn” and hold
1,920 acres.
5. If operations for the exploration of Minerals are not commenced on the lands described
herein or on land pooled therewith on or before one year from the date of this Lease, Lessee shall
pay or tender to Lessor an advance royalty computed based upon 50 cents per net acre of Coal Bed
Gas interest (with ownership based on coal record title) and 50 cents per net acre of Oil and Gas
interest (with ownership based on oil and gas record title) owned by Optionor which shall cover the
privilege of deferring commencement of such operations for a period of 12 months. In like manner
and upon like payments or tenders on an annual basis thereafter, the commencement of said
operations may be further deferred for successive periods of the same number of months, each during
the primary term. Payment or tender of the advance royalty shall be made to the Lessor at the
following address:
Washington County Treasurer
000 Xxxx Xx. Xxxxx Xx.
Xxxxxxxxx, XX 00000
000 Xxxx Xx. Xxxxx Xx.
Xxxxxxxxx, XX 00000
The payment or tender of the advance royalty may be made by check, draft, or other means of payment
and mailed or delivered to Lessor or either Lessor, if more than one, on or before the advance
royalty payment date. Notwithstanding the death of the Lessor or Lessor’s successors in interest,
the payment or tender of advance royalty in the manner provided herein shall be binding on the
successors and assigns of the Lessor or Lessor’s successors in interest. All advance
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royalties paid by Lessee shall be recouped from actual royalties which may be due and owing to
Lessor and which royalties correspond to production.
6. If, prior to the discovery of Minerals, or any of them, on the lands described herein or
on land pooled therewith, Lessee should drill and abandon a dry hole or holes thereon, or if, after
discovery of Minerals, or any of them, the production thereof should cease from any cause for 120
consecutive days, this Lease shall not terminate if Lessee commences additional drilling or
reworking operations within 120 days thereafter or (if it be within the primary term) commences or
resumes the payment or tender of advance royalties on or before the advance royalty paying date
next ensuing after the expiration of 12 months from the date of completion and abandonment of said
dry hole or holes or the cessation of production as defined herein. If at the expiration of the
primary term, Minerals, or any of them, are not being produced on the lands described herein or
land pooled therewith but Lessee is then engaged in operations for drilling or reworking of any
well or xxxxx thereon, this Lease shall remain in full force so long as such operations or said
additional operations are commenced and prosecuted, (whether on the same or successive xxxxx) with
no cessation of more than 120 consecutive days and if they result in production, so long thereafter
as Minerals or any of them are produced from the lands described herein or lands pooled therewith.
7. The Lessee shall pay to the Lessor the following royalties:
| (a) | One-Eight (1/8) of the amount realized by Lessee from the sale of Coal Bed Gas. The payment of this royalty shall be based upon the assumption that the interest of Lessor in the Coal Bed Gas is based upon Lessor’s ownership of the coal as to the lands described herein. | ||
| (b) | One-sixteenth (1/16) of the amount realized by Lessee from the sale of Coal Bed Gas. The payment of this royalty shall be based upon the assumption that the interest of Lessor in the Coal Bed Gas is based upon Lessor’s ownership of the gas within the Oil and Gas as to the lands described herein. | ||
| (c) | One-eighth (1/8) of the oil and liquid hydrocarbons within the Oil and Gas produced and saved with the same to be delivered at the well or to the credit of the lessor in the pipeline to which a well may be connected, based upon Lessor’s ownership of the oil within the Oil and Gas as to the lands described herein. | ||
| (d) | The market value at the mouth of the well of one-eight (1/8) of the gas within the Oil and Gas sold or used or one-eight (1/8) of the amount realized from the sale thereof at the well, based upon Lessor’s ownership of the gas within the Oil and Gas as to the lands described herein. |
8. If at any time there is a well or xxxxx on the lands which are capable of producing Coal
Bed Gas or gas within Oil and Gas and such well or xxxxx are shut in, and if this Lease is not
being continued in force by some other provision hereof, then this Lease shall nevertheless
continue in force for a period of 90 days from the date such well or xxxxx are shut in and before
the expiration of any such 90 day period, Lessee may pay or tender an advance annual royalty
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payment of $100.00 for each such well and if such payment or tender is made, this Lease shall
continue in force and it shall be considered that Coal Bed Gas and gas within Oil and Gas are being
produced within the meaning of paragraph 4 hereof for one year from the date such payment is made
in a like manner, subsequent advance annual royalty payments may be made or tendered and this Lease
shall continue in force and it should be considered that Coal Bed Gas and gas within Oil and Gas
are being produced within the meaning of paragraph 4 during any annual period or which such royalty
payment is so paid or tendered. Notwithstanding the foregoing, payment of the aforedescribed
royalties for any shut-in well or xxxxx shall not exceed a period of 5 years. Perpetuation of this
Lease by payment of royalty as provided in this paragraph shall be in lieu of payment of advance
royalties as provided in paragraph 5 above. In addition, payment of any royalty pursuant to this
paragraph shall be recouped by Lessee from any royalty payment otherwise payable to Lessor pursuant
to actual production of Minerals or any of them.
9. Lessee is granted the right to pool or unitize this Lease, the land covered hereby or any
part thereof, with other land or leases or parts thereof for the production of Minerals, or any of
them, covered hereby. No production for Coal Bed Gas or gas with Oil and Gas shall embrace more
than 160 acres plus a tolerance of 10% thereof. No production for oil within Oil and Gas shall
embrace more than 80 acres plus a tolerance of 10% thereof. Notwithstanding, if any federal or
state law, executive order, rule, or regulation shall prescribe a spacing pattern for the
development of the field or allocate a producing allowable on acreage per well, then any such unit
may embrace as much additional acreage as may be so prescribed or as may be used in such allocation
or allowable. Lessee shall execute in writing an instrument identifying and describing the pooled
or unitized acreage. Such unit shall be designated either before or after the completion of any
xxxxx. Operations and production on any part of the pooled or unitized acreage shall be treated as
if such operations were upon or such production was from the land described in this Lease whether
the well or xxxxx be located on the land covered by this Lease or other lands. The entire acreage
so pooled into a unit shall be treated for all purposes, except for the payment of royalties on
production from the pooled or unitized lands, as if it were included within this Lease. In lieu of
the royalties herein provided, Lessor shall receive on production from a unit so pooled or unitized
only such proportion of the royalty stipulated herein as the amount of Lessor’s acreage placed in
the unit or Lessor’s royalty interest therein on an acreage basis bears to the total acreage so
pooled or unitized.
10. Lessee shall have the right to use, free of costs, all Minerals covered by this Lease for
all operations hereunder except for water from Lessor’s xxxxx or tanks. Any royalty payment to the
Lessor shall be computed after deducting any amount so used. When requested by Lessor, Lessee
shall bury all pipelines at least twenty four inches (24”) below the surface. Lessee shall pay for
all damages caused by Lessee’s operations to growing crops on the land. The amount of any such
damage payment shall be based upon the fair market value of the actual crops destroyed. Lessee
shall have the right at any time to remove any equipment, property, or fixtures placed on the land
by Lessee together with the right to draw and remove all casing and other downhole equipment.
11. The rights of either party to this Lease may be assigned in whole or in part and the
provisions hereof shall extend to the successors and assigns of the parties but no change or
division in ownership of the Minerals covered hereby with respect to the lands or royalties,
however accomplished, shall operate to enlarge the obligations or diminish the rights of Lessee
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or require the installation of separate measuring tanks or devices. No such change or
division in the ownership of the Minerals in the lands or royalties shall be binding upon Lessee
for any purpose until such person acquiring any interest has furnished Lessee with the instrument
or certified copies thereof constituting said person’s chain of title from the original Lessor.
Any assignment of this Lease by Lessee, in whole or in part, shall, to the extent of such
assignment, relieve and discharge Lessee of any obligations hereunder and if any Assignee of any
part or parts hereof shall fail to comply with any provisions of this Lease, such default shall not
affect this Lease insofar as it covers the part retained by Lessee or another assignee.
12. In the event Lessor considers that Lessee has not complied with its obligations
hereunder, both express and implied, including the obligation of production as provided in
paragraph 4, Lessor shall give written notice to Lessee setting forth specifically in what respects
Lessee has failed to comply with Lessee’s obligations pursuant to this Lease. Lessee shall then
have 60 days from receipt of such notice to commence and thereafter pursue with reasonable
diligence such action as may be necessary or proper to satisfy the obligation of Lessee, if any,
with respect to Lessor’s notice. Neither the service of the notice nor the doing of any acts by
Lessee intended to satisfy any of the alleged obligations shall be deemed an admission or
presumption that Lessee has failed to perform all of its obligations hereunder. No judicial action
may be commenced by Lessor with respect to any of said obligations until after the 60 day period as
provided herein. Lessee shall be given a reasonable opportunity after judicial ascertainment to
prevent the forfeiture or termination of this Lease by discharging its express or implied
obligation as established by the court.
13. Lessor warrants and agrees to defend title to the Minerals covered hereby as to the lands
and agrees that Lessee, at its option, may discharge any tax, mortgage, or other lien upon the
interest and in the event Lessee does so, it should be subrogated to such lien with the right to
enforce same and apply royalties accruing hereunder towards satisfying the same. Without
impairment of Lessee’s rights under the warranty in the event of failure of title, it is agreed
that, if Lessor owns an interest in the Minerals covered hereby as to the lands less than the
entire fee simple estate, then the royalties and other payments to be paid lessor shall be reduced
proportionately. This Lease shall be binding upon all who execute it and they shall be considered
lessors, whether or not they are named in the granting clause hereof and whether or not all parties
named in the granting clause execute this Lease.
14. To the extent that Lessor owns no interest in the surface as to the lands described
herein, the provisions set forth herein with respect to surface obligations shall not be applicable
except to the extent as may be required by law.
15. Lessee may at any time surrender this Lease as to all or any part thereof by delivering
or mailing a release to Lessor and if surrendered only as to a part thereof, any payments based
upon acreage shall be reduced proportionately.
16. Lessee shall comply with all applicable federal, state, and local law, statutes,
ordinances, regulations, and orders applicable to Lessee’s operations and the conditions created
thereby.
17. When any operation contemplated by this Lease is delayed or interrupted as a result of
any cause whatsoever beyond the control of Lessee or any event of force majeure, or as a
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result of any state, federal, or municipal law, ordinance, executive order, rule, or
regulation, then the time for such delay or interruptions shall not be counted against Lessee as to
any timeframe required by this Lease. Lessee shall not be held liable in damages because of any
such delay or interruption.
18. In the event the interest of the Lessor as to the Coal Bed Gas is based upon Lessor’s
ownership of a coal interest, and in the event the coal interest is the subject of a coal mining
lease or other agreement authorizing the mining and removal of coal, the Lessor acknowledges that
the operations for the mining and removal of coal may involve the venting of Coal Bed Gas into the
atmosphere as a waste product for the protection and efficiency of the mining operation. Lessee
shall have no obligation to recover any gas as may be vented during such coal development and
Lessee shall have no liability or obligation to Lessor for any royalties on such vented gas. The
parties further acknowledge that Coal Bed Gas may be vented and lost during repairs to or the
testing of xxxxx or prior to the connection of any xxxxx to gathering and/or transmission lines in
conjunction with Lessee’s operations. Under such circumstances, Lessee shall not be liable or
obligated to Lessor for any royalties on such vented and lost gas.
19. Lessor shall have the right at any time, at Lessor’s expense to:
| a. | Inspect by all appropriate means Lessee’s facilities on the Land; | ||
| b. | Test Lessee’s meters and other measuring and testing devices; | ||
| c. | Sample, test measure and gage production of the xxxxx, including the right, but not the obligation, to install meters on lines; | ||
| d. | Observe Lessee in the performance of Lessee’s obligations under this lease; and | ||
| e. | By appointment, examine or audit, during the term of this lease and for three years thereafter, the books, records, supporting documents, files and correspondence of Lessee maintained in connection with the lease and the production and /or sale of the coal gas or coal gas products from the Land at Lessee’s place of business. |
20. Special Operating Methods: Lessee shall provide to Lessor, upon request and at Lessor’s
expense, all survey information which Lessee may now have or hereafter obtain to inform Lessor
fully as to the exact location of any well drilled and copies of all logs, drill stem test records,
core analyses, pressure tests, or any other information obtained by Lessee in the course of
drilling any well.
Further, Lessee shall provide Lessor or its coal mining Lessee find location surveys of all
pipelines, compressor stations or other facilities of the gas operations.
21. Lessee agrees that no well will be drilled within 200 feet of any personal residence, or
building used in a commercial business existing at the time of the execution of this lease.
22. Lessee shall at all times while physical operations are being conducted maintain
comprehensive general liability insurance policies in an amount of not less than one millions
dollars ($1,000,000.00) combined single limit coverage. Lessee shall also maintain automobile
insurance in an amount of not less than three hundred thousand dollars ($300,000.00) combined
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single limit coverage. Lessee shall also provide xxxxxxx’x compensation insurance to cover
all of Lessee’s employees.
23. The volume of all coalbed methane for which payment is to be made hereunder shall be
measured, before being mixed with gas or coalbed methane from other lands not pooled or unitized
with the Leased Premises, by standard meters of approved type adapted to the volume of coalbed
methane to be measured. The method of computation and measurement shall conform with
recommendations provided by the Gas Measurement Committee of the American Gas Association.
24. Lessors make no representation or warranty as to the physical condition of the property
to be leased.
25. Lessee agrees to indemnify and save Lessor harmless from all loss and damage sustained by
Lessor from its operations.
26. Lessor shall pay a proportionate part of any and all taxes levied or assessed upon the
production of Minerals covered hereby and Lessee is authorized to pay such taxes and assessments on
behalf of Lessor and to deduct the same so paid from any monies otherwise payable to the Lessor.
Lessor’s proportionate part shall correspond to the amount of royalty corresponding to Lessor’s
interest in the Minerals.
27. This Lease shall be binding upon and inure to the benefit of the parties hereto together
with their successors and assigns. To the extent that the interest covered by this Lease
constitutes any part of the homestead estate of Lessor, then the Lessor releases and waives all
rights under and by virtue of the homestead exemption laws of the State of Illinois.
EXECUTED the day and year above written.
| LESSOR WASHINGTON COUNTY, ILLINOIS |
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| BY | /s/ Xxxxx X. Xxxxx | ||||
| Its Chairman | |||||
| LESSEE BPI ENERGY, INC. |
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| BY | /s/ Xxxxx X. Xxxxxx | ||||
| Its President | |||||
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STATE OF ILLINOIS COUNTY OF WASHINGTON |
) ) SS ) |
I, the undersigned, a Notary Public, in and for said County, in the State aforesaid, do hereby
certify that Xxxxx X. Xxxxx personally known to me to be the same person whose name is subscribed
to the foregoing instrument, appeared before me this day in person, and acknowledged that he
signed, sealed, and delivered the said instrument as his free and voluntary act for the uses and
purposes therein set forth, including the release and waiver of the right of homestead.
Given under my hand and seal this 8th day of September, 2006.
| /s/ Xxxxxx Xxxx | ||||
| Notary Public | ||||
My Commission Expires: November 28, 2006
STATE OF OHIO COUNTY OF SUMMIT |
) ) SS ) |
I, the undersigned Notary Public, in and for said County in the State aforesaid, do hereby
certify that Xxxxx X. Xxxxxx, personally known to me to be the President, of BPI ENERGY, INC.,
whose name is subscribed to the foregoing instrument, appeared before me this day in person, and
acknowledged that as such President he signed and delivered the said instrument of writing as
President of said Corporation, pursuant to authority given by the Board of Directors of said
Corporation as his free and voluntary act, and as the free and voluntary act and deed of said
Corporation, for the uses and purposes therein set forth.
Given under my hand and seal this 29th day of August, 2006.
| /s/ Xxxxx X. Xxxxx | ||||
| Notary Public | ||||
My Commission Expires: May 25, 2011
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