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s <br />i <br />the purchase price funds pursuant to the terms of the February 24, 1997 and March 7, 1997 letters • <br />of approval attached hereto as Exhibit B (hereinafter the "Reservoir Company's Obligation"). <br />4. Joint Performance Obligations. Climax and the Reservoir Company shall both <br />diligently undertake reasonable efforts to perform the following, all of which are referred to <br />herein as the "Joint Obligations": <br />(a) To the extent such permit is necessary, obtain a 1041 permit from Eagle <br />County to enable delivery of water from Eagle Park Reservoir to the East Fork of the Eagle <br />River. <br />(b) Obtain any and all other federal, state and county permits necessary for the <br />operation of any aspect of the Eagle Park Reservoir Project. To the extent reasonably possible, <br />said permits shall also authorize the operation of the East Fork Pumpback Facility. <br />(c) Obtain from Colorado Springs and Aurora an agreement subordinating the <br />Eagle-Arkansas, Homestake II, and Camp Hale Projects, to the water rights decreed to Eagle <br />Park Reservoir in Case Nos. 92CW340 and 95CW348. The parties agree that this obligation will <br />be satisfied by the execution of the memorandum of understanding attached hereto as Exhibit C. <br />5. Conditions Precedent to Purchase and Sale. The Climax Obligations, <br />Reservoir Company Obligation and Joint Obligations are sometimes collectively referred to <br />herein as the "Conditions Precedent." If all of the Conditions Precedent have not been satisfied • <br />within two years of the date of this Agreement, then either Climax or the Reservoir Company <br />may terminate this Agreement by written notice to the other party; provided, however, that either <br />the Reservoir Company or Climax may (a) by written notice to the other party at least 60 days <br />prior to the expiration of such two year period, elect to extend the two year period for an <br />additional six months; and/or (b) waive any of the performance obligations set forth in <br />paragraphs 2, 3 and 4 above owed by the other party or by the parties jointly. However, no party <br />may waive either its own performance obligations or the joint obligations set forth above without <br />the express written consent of the other party. No Condition Precedent shall have been deemed <br />satisfied or waived until and unless the parties hereto both specifically agree in writing that such <br />Condition Precedent has been satisfied, or until both parties specify in writing that such <br />Condition Precedent has been waived. A further condition to Closing shall be that all of the <br />representations and warranties of the parties set forth in paragraphs 12, 13 and 14 below remain <br />true as of the Closing. <br />6. Closin . The closing on the Purchase and Sale of the Project Rights (the <br />"Closing") shall occur within 30 days after satisfaction of all of the Conditions Precedent, unless <br />extended pursuant to the provisions of paragraph 5 above, or at such other time as is mutually <br />agreed to by the parties. At the Closing, all of the following shall occur, all of which shall be <br />deemed to have occurred simultaneously, each of which shall be a condition of the others: <br />• <br />fd2669 <br />-4-