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CM0001141 <br />April 116 a.f <br />May-July 5,807 of <br />August 847 of <br />September 538 af. <br />October 419 of <br />The diversion and consumptive use figures listed above also <br />include exercise of the Wills Tunnel'(also known as the <br />Phillipson Tunnel) and Pipeline water right decreed in civil <br />Action No. 1698 in Summit County District Court on August_22, <br />1932. Notwithstanding the foregoing, the Company and its below <br />signed shareholders may file a statement of opposition to <br />monitor any application for re-adjudication described. above and <br />to assure.compliance with the terms of this subparagraph 4(c). <br />5. Covenants of Climax. Subject to and expressly <br />conditioned upon the Closing, Climax hereby covenants to the <br />Company as follows, and such covenants shall survive the <br />closing: <br />(a) Climax and its,affiliates, parents and <br />subsidiaries shall not oppose (1) the use,"directly or by <br />exchange, substitution, replacement or augmentation, of water <br />stored in or yield attributable to the Reservoir or the Denver <br />Agreement by the.Company, its shareholders or their successors <br />or assigns, and (2) any water court application related to such <br />use. <br />(b) Climax shall not modify any current <br />operations or commence any new operations on any land owned, <br />leased or controlled by Climax where such modification or <br />commencement of operations could result in'the introduction of <br />additional pollutants over the average current pollutant level <br />present in the Reservoir, which level is described in the <br />report attached hereto as:Exhibit J, into the Clinton Canal and <br />related facilities, which are more. particularly described on <br />Exhibit R attached hereto (the "Clinton Canal"'). Climax and <br />its affiliates shall not, pursuant to any patented or <br />unpatented mining claim, or any other right accruing to the <br />proprietor of a vein or lode, conduct any mining operations on <br />or seek to extract minerals from the Property, and Climax <br />hereby relinquishes any rights it may have as a proprietor of a <br />vein or lode to extract minerals from the Property. In <br />addition, Climax shall not conduct, or permit the conduct of <br />any operations on or in any land or facilities owned, leased or <br />controlled by Climax, where such operations could result in the <br />introduction of additional pollutants over the current <br />pollutant level described on Exhibit J, to the Reservoir. For <br />Purposes of this Agreement,,"pollutantsf shall mean hazardous <br />substances, pollutants or contaminants as defined in the <br />-6- <br />• <br />• <br />•