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•. 1 <br />(b) Further, as part payment of the Purchase Price, Buyer <br />deposited with the Escrow the sum of $265,000 to be held on <br />behalf of both the Seller and Buyer ("Deposit"). Escrow is <br />authorized to deliver the Deposit to Seller upon final <br />completion and delivery as described in Section 3.1(t1. The <br />Deposit shall be invested in an interest bearing account <br />selected by Buyer and all interest on the Deposit shall be for <br />the benefit of Buyer and shall be credited towards payment of <br />the Purchase Price. All interest income on the Deposit shall <br />accrue to the benefit of Buyer and Seller shall have no <br />responsibility for any taxes due on such interest income. The <br />Deposit and any accrued interest shall be returned to Buyer if <br />the agreement is terminated by Buyer, as set forth in Articles <br />IV, V, or VIII herein. <br />(c) All estimates of operational capacity will be based upon the <br />volume of reservoir space below the high water level with <br />1.875 feet of freeboard, with side slopes completed to the <br />slope required by the mined land reclamation permit. Seller <br />will complete reclamation in accordance with the approved <br />plan for the mined land reclamation plan, number M-79-195. <br />Any amendments to the reclamation plan shall require <br />approval of Buyer. <br />(d) Within 45 days of execution of this agreement, Buyer will <br />perform a survey of the existing pit, and the parties will agree <br />upon the currently existing capacity of the pit. If the parties <br />are unable to agree on the existing capacity, they will jointly <br />select a qualified independent third-party consultant who will <br />make a binding determination of the existing capacity. Buyer <br />and Seller will share the costs of the qualified consultant. At <br />closing Seller will be paid by Escrow for the existing capacity <br />at the rate of $921.92 per acre-foot, utilizing the Earnest <br />Money and the additional funds paid into escrow by Buyer as <br />described in Section 4.3 hereof. For purposes of payment for <br />existing capacity, the volume of reservoir space below the <br />high water level of 5018.125 feet (NAND 1988) wiN be used. <br />This high water level will provide a freeboard of 1.875 feet <br />below the minimum bank elevation of 5020 feet (NAND 1988). <br />3 <br />