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used on or from the Premises, together with any taxes,penalties, surcharges or the like pertaining thereto
<br /> and any maintenance charges for all utilities. Notwithstanding the foregoing, within 90 days after the
<br /> Commencement Date, CWH agrees to install at its cost and expense the following electrical service in
<br /> connection with the night heaters on the asphalt plant and any future office and shop locations located on
<br /> Mining Pod#1 in compliance with all applicable laws and regulations: 480 volt 3 phase power line with a
<br /> 400 amp drop,terminating at a transformer pole;CWH will then extend a 480 volt 3 phase power line with
<br /> a 200 amp drop to the asphalt plant.
<br /> 7. CONDEMNATION.
<br /> (a) If during the Term,the whole or any part of the Premises should be taken for
<br /> any public or quasi-public use under governmental law, ordinance or regulation, or by right of eminent
<br /> domain,or conveyed under threat thereof or to a private purchase in lieu thereof(collectively,a"Taking")
<br /> and the Taking would prevent or materially interfere with the use of the Premises for the purposes
<br /> contemplated by the Permitted Use as reasonably determined by Tenant,this Lease shall,at Tenant's option,
<br /> (i)if the Taking is of the whole of the Premises,terminate and all rents and royalties shall be abated during
<br /> the unexpired portion of the Term,effective when the physical Taking of said Premises shall occur;and(ii)
<br /> if the Taking is of less than the whole of the Premises,terminate as to such part of the Premises Taken and
<br /> the Fixed Rent and Minimum Quantity shall be ratably abated only for such Taken portion during the
<br /> unexpired portion of the Term,effective when the physical Taking of such Premises shall occur.
<br /> (b) In the event of any such Taking, Tenant shall be entitled to receive from the
<br /> price or award to be paid,for such Taking(the"Taking Proceeds")an amount equal to the Tenant's Cover
<br /> Costs. For purposes of this Agreement, "Tenant's Cover Costs" shall be the portion of the award
<br /> specifically designated for Tenant's business interruption, construction interference, relocation, Tenant's
<br /> personal property(including severed Product and Product stockpiles),and Tenant's court costs. The parties
<br /> shall jointly negotiate with any public authority and to direct and control any legal proceedings involving
<br /> or related to any such taking or private purchase in lieu thereof.
<br /> 8. HOLDING OVER. Tenant shall have the right to hold over for a period of the longer of
<br /> the period during which Tenant completes its reclamation obligations(if any,pursuant to Section 5)or 180
<br /> days following the Depletion Date,provided that(a)Tenant provides CWH with written notice thereof,(b)
<br /> Tenant is not in default of any of the material terms and provisions of the Lease,beyond any applicable
<br /> notice and cure periods,and(c)Tenant shall pay a pro rata portion of the Fixed Rent for the period during
<br /> which Tenant holds over on the Premises.
<br /> 9. REPRESENTATIONS & WARRANTIES OF CWH. CWH hereby represents and
<br /> warrants to Tenant the following as of the Commencement Date:
<br /> (a) Subject to any State of Colorado claim to Materials in Mining Pods#1 and#4,
<br /> CWH has good and marketable title in fee simple to the Premises and to all plants,buildings,improvements,
<br /> and fixtures thereon,to all tangible and intangible personal property,free and clear of any encumbrances,
<br /> liens, mortgages, security interests, claims, charges, imperfections of title, encroachments, easements,
<br /> rights-of-way, covenants, conditions, restrictions, or commitments ("Encumbrances") other than the
<br /> Encumbrances set forth on Schedule 9(a)("Permitted Encumbrances").
<br /> (b) The Permit is in full force and effect,and no breaches or defaults have occurred
<br /> thereunder.
<br /> (c) There is no special proceeding pending or to CWH's Knowledge threatened,
<br /> in which any taxing authority having jurisdiction over any of the Premises is seeking to increase the assessed
<br /> value thereof. ("CWH's Knowledge" means the actual knowledge, after reasonable inquiry, of CWH's
<br /> Manager,Richard Connell or Kevin Anderson,Operations Manager.)
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