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SURFACE USE AND <br />SUBSIDENCE AGREEMENT <br />THIS SURFACE USE AND SUBSIDENCE AGREEMENT (the "Agreement'), dated <br />effective the 1st day of August, 1995, is by and between KENNETH R. ASHLEY & <br />CO., a Colorado partnership, with an address of 5227 South County Road #7, Fort <br />Collins, Colorado 80525 (hereinafter referred to as "Surface Owner "), and CYPRUS <br />WESTERN COAL COMPANY, a Delaware corporation, with an address at 29587 Routt <br />County Road #27, Oak Creek, Colorado 80467 (hereinafter referred to as "Cyprus "). <br />WITNESSETH: <br />THAT, WHEREAS, Surface Owner is part owner of the surface of those certain lands <br />(the "Lands ") located in the County of Routt, State of Colorado, as further described <br />in Exhibit "A" attached hereto and made a part hereof; and <br />WHEREAS, Cyprus owns a portion of the fee coal and coal mining rights underlying <br />the Lands; and Cyprus controls a portion of the coal under State of Colorado Coal <br />Mining Lease No. CO -3229 (the "State Lease "), covering the mining rights to all coal <br />seams lying beneath a portion of the surface of the Lands, including the right to <br />prospect for, mine and remove said coal seams in accordance with the State Lease; <br />and <br />WHEREAS, in order to protect both Surface Owner's surface rights and Cyprus' rights <br />under the State Lease, the parties hereby mutually agree to the following terms and <br />conditions: <br />fi, emit. Surface Owner, for and in consideration of the covenants, conditions <br />and obligations hereinafter contained, and other good and valuable <br />consideration, the receipt and sufficiency of which are hereby acknowledged, <br />does hereby grant unto Cyprus the rights and privileges set forth herein, <br />together with the right and privilege to enter upon and through the Lands for the <br />term and purposes and upon the conditions and provisions herein set forth. <br />2. Term. The primary term of this Agreement shall be for a period of ten (10) <br />years and shall commence on the effective date hereof and end at 12:00 <br />midnight on the 31 st day of July, 2005; however, Cyprus shall have the right <br />to request renewal this Agreement for one (1) additional ten (10) year term, <br />upon the terms anrconditions to be mutually agreed to in writing between the <br />parties on or before the expiration of the primary term, by providing Surface <br />Owner with written notice of its intention to extend this Agreement within <br />ninety (90) days prior to the expiration of the primary term. <br />casd,sid.00em8 . 1 - <br />