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"Title Defect" shall mean any lien, encumbrance, defect in or objection to title other than those set forth in Paragraph 22 of this Agreement. "Usable Water Storage Capacity" shall mean the capacity of the Reservoir available for water storage as measured between the top of the dead storage pool, if any, and the Normal Maximum Water Surface, but does not include Passive Storage. Settlement Of Condemnation 1. Settlement. Subject to the terms and conditions herein, Thornton and Aggregate agree to settle the Condemnation Action. Thornton and Aggregate shall execute and file with the District Court, on or before ten (10) days subsequent to the execution and delivery of this Agreement, a Notice Of Settlement and Order. This Notice will inform the Court of the execution of this Agreement, but wil{ also note that several contingencies must be satisfied before the action can be dismissed. In view of these contingencies, the Notice will request that the court continue to hold the action in abeyance until the contingencies are satisfied or until either party notifies the court that the settlement will not take place and requests the scheduling of the va{uation trial. Said Notice and Order will be in a form acceptable by the court for placing the Condemnation Action in an inactive status pending the Closing under this Agreement. 2. Stipulation for Dismissal. At Closing, or in the event Thornton does not exercise the option to purchase the Property within the time provided under this agreement, Thornton and Aggregate shall execute a Stipulation for Dismissal of the Condemnation Action which will provide that each party is to pay its own costs, attorneys' fees and expenses and Aggregate specifically waives any right it may have for a claim of damages, costs, expenses or attomeys' fees by reason of the dismissal or abandonment of the Condemnation Action. 3. Non-6cercise of Option or Occurrence of Closing. In the event Thomton does not exercise its option or the Closing under this Option and Purchase Agreement does not occur due to Thornton's actions, and Thornton proceeds with a new condemnation action within two (2) years, of the expiration of the option period under this Agreement, the amount to be paid in such condemnation action shall be the same as that set forth in this Option and Purchase Agreement. Option to Purchase 4. Option to Purchase. Thornton shall have an option to purchase the property under the terms set forth herein for a period of two (2) years. The consideration for such option Is the mutual agreements of the parties contained herein regarding the settlement of the Condemnation Action and the purchase of the Property. Hammer Option & Purchase Agreement December 31, 2000 Page 3 of 29