Common use of Environmental Dispute Resolution Clause in Contracts

Environmental Dispute Resolution. (a) If, prior to Closing, the Parties are unable to agree on a resolution associated with any dispute regarding the existence, cure or remediation of any alleged Environmental Defect that was timely and properly asserted by Buyer under Section 9.2(a) or any Environmental Defect Amount with respect to such an alleged Environmental Defect (each, a “Disputed Environmental Matter”), then (i) the Assets subject to the Disputed Environmental Matter shall not be assigned to Buyer at Closing, (ii) such Assets shall be retained by Seller and deemed to be “Excluded Assets” for all purposes hereunder unless and until such Disputed Environmental Matter is agreed upon by the Parties or is resolved pursuant to this Section 9.3, (iii) subject to Section 9.4(a), the Closing Payment shall be reduced by the aggregate Allocated Values of such Assets at Closing and (iv) subject to Section 10.1 and Section 10.3, the Closing will occur as to the remainder of the Assets. Upon the agreement with respect to or final resolution of any Disputed Environmental Matter pursuant to this Section 9.3, subject to Buyer’s right pursuant to Section 9.2(d), (A) all such affected Assets that were not assigned to Buyer at Closing pursuant to subpart (i) of this Section 9.3 shall again be considered “Assets” hereunder (and no longer considered “Excluded Assets”) and Seller shall convey such affected Assets to Buyer at an agreed upon time and location (but not later than three (3) Business Days after such resolution) (a “Subsequent Closing”) in a manner consistent with the provisions of Section 10.2 and Section 10.4 applicable to the Assets to be conveyed to Buyer in such Subsequent Closing, and (B) contemporaneously with such conveyance, Buyer shall pay to Seller the Allocated Value of such Assets (as adjusted pursuant to Section 3.2 and Section 3.3) by wire transfer of immediately available funds.

Environmental Dispute Resolution. (a) If, prior The Parties agree to Closing, resolve disputes concerning the Parties are unable to agree on a resolution associated with any dispute regarding the existence, cure or remediation existence and scope of any alleged an Environmental Defect that was timely and properly asserted by Buyer under Section 9.2(aand/or Remediation Amount (the “Environmental Disputed Matters”) or any Environmental Defect Amount with respect to such an alleged Environmental Defect (each, a “Disputed Environmental Matter”), then (i) the Assets subject to the Disputed Environmental Matter shall not be assigned to Buyer at Closing, (ii) such Assets shall be retained by Seller and deemed to be “Excluded Assets” for all purposes hereunder unless and until such Disputed Environmental Matter is agreed upon by the Parties or is resolved pursuant to this Section 9.3, (iii) subject 5.4(d). The Parties agree to attempt to initially resolve all disputes through good faith negotiations. If the Parties cannot resolve disputes regarding Environmental Disputed Matters on or before Closing and Seller elects the remedy in Section 9.4(a5.4(c)(iii), the Closing Payment shall be reduced by the aggregate Allocated Values of such Assets at Closing proceed and (iv) subject to Section 10.1 and Section 10.3, the Closing will occur as to the remainder of the Assets. Upon the agreement with respect to or final resolution of any Disputed Environmental Matter pursuant to this Section 9.3, subject to Buyer’s right pursuant to Section 9.2(d), (A) all such affected Assets that were not assigned to Buyer at Closing pursuant to subpart (i) of this Section 9.3 shall again be considered “Assets” hereunder (and no longer considered “Excluded Assets”) and Seller shall convey such affected Assets to Buyer at an agreed upon time and location (but not later than three (3) Business Days after such resolution) (a “Subsequent Closing”) in a manner consistent with the provisions of Section 10.2 and Section 10.4 applicable to the Assets to be conveyed to Buyer in such Subsequent Closing, and (B) contemporaneously with such conveyance, Buyer shall pay to Seller the Allocated Value of such Assets all or that portion of the Purchased Asset alleged to be affected by the Environmental Defect (as adjusted “Environmental Disputed Amount”) shall be placed in escrow pursuant to Section 3.2 7.2. If arbitration to resolve Environmental Disputed Matters pursuant to Article XII is not initiated by Purchaser within fifteen (15) business days after Closing, no downward adjustment shall be made for the Environmental Disputed Amounts in the Final Settlement Statement and Purchaser shall be deemed to have assumed responsibility for all costs and expenses attributable to the Remediation of the applicable Environmental Defect (net to the Purchased Assets) and all Liabilities (net to the Purchased Assets), including Environmental Liabilities, with respect thereto, and Purchaser’s obligations with respect to the foregoing shall be deemed to constitute part of the Assumed Obligations. Within five (5) business days after the Arbitrator’s decision as to the existence and scope of an Environmental Defect and/or Remediation Amount, Seller shall elect, at its sole option, the remedy in either subparagraph (i) or (ii) of Section 3.35.4(d) by wire transfer of immediately available fundsthis Agreement and notify Purchaser in writing of such election. Any post-Closing resolution of the Environmental Disputed Matters shall be reflected in the Final Settlement Statement.

Environmental Dispute Resolution. (ai) IfSeller and Buyer shall attempt in good faith to agree on all Environmental Defects and Remediation Amounts (collectively, the “Environmental Disputes”) prior to Closing, the Parties . If Seller and Buyer are unable to agree on by Closing, (i) the Environmental Disputes will be exclusively and finally resolved by arbitration pursuant to this Section 6.1(e), (ii) the Closing Cash Amount shall be adjusted downwards by the Allocated Value of each Conveyed Interest affected by such Environmental Disputes (together with all associated Conveyed Interests) and such Conveyed Interests shall be deemed to be Excluded Assets until such disputes are finally resolved (including, for the avoidance of doubt, for the purposes of calculating the Adjusted Closing Cash Amount and the Interim Period Carried Costs Amount) and (iii) promptly after such Environmental Disputes are finally resolved, Seller shall, at its sole option with respect to each such Conveyed Interest, elect to either: (a) convey such Conveyed Interest to Buyer in a resolution associated with any dispute regarding form substantially similar to the existence, cure or remediation of any alleged Assignment and cause Buyer to pay to Seller an amount equal to (x) the Allocated Value minus the Environmental Defect Amount, if any (provided that was timely Seller has not elected to assume responsibility for the Remediation of the underlying Environmental Defect, in which case, such deduction will not be made and properly asserted by Buyer under Section 9.2(a) or any Seller shall implement and promptly complete such Remediation in a manner which is consistent with the requirements of Environmental Defect Amount Laws), with respect to such an alleged Environmental Defect (eachConveyed Interest, a “Disputed Environmental Matter”subject to Section 6.1(d), then plus (iy) the Assets subject sum of all amounts Buyer would have been required to pay to Seller with respect to the Disputed Environmental Matter shall not be assigned development of such Conveyed Interests pursuant to the Development Agreement and any related operating agreements (including any Carried Costs that exceed the portion of the Allocated Value for such Title Defect Property that is attributable to the Carried Costs Obligation) had such Conveyed Interest been conveyed to Buyer at Closing; or (b) retain such Conveyed Interest, (ii) in which case such Assets shall Conveyed Interest will be retained by Seller and deemed permanently to be “an Excluded Assets” for all purposes hereunder unless and until such Disputed Environmental Matter is agreed upon by the Parties or is resolved pursuant to this Section 9.3, (iii) subject to Section 9.4(a), the Closing Payment shall be reduced by the aggregate Allocated Values of such Assets at Closing and (iv) subject to Section 10.1 and Section 10.3, the Closing will occur as to the remainder of the Assets. Upon the agreement with respect to or final resolution of any Disputed Environmental Matter pursuant to this Section 9.3, subject to Buyer’s right pursuant to Section 9.2(d), (A) all such affected Assets that were not assigned to Buyer at Closing pursuant to subpart (i) of this Section 9.3 shall again be considered “Assets” hereunder (and no longer considered “Excluded Assets”) and Seller shall convey such affected Assets to Buyer at an agreed upon time and location (but not later than three (3) Business Days after such resolution) (a “Subsequent Closing”) in a manner consistent with the provisions of Section 10.2 and Section 10.4 applicable to the Assets to be conveyed to Buyer in such Subsequent Closing, and (B) contemporaneously with such conveyance, Buyer shall pay to Seller the Allocated Value of such Assets (as adjusted pursuant to Section 3.2 and Section 3.3) by wire transfer of immediately available fundsAsset.

Environmental Dispute Resolution. (a) If, prior The Parties agree to Closing, resolve disputes concerning the Parties are unable to agree on a resolution associated with any dispute regarding the existence, cure or remediation existence and scope of any alleged an Environmental Defect that was timely and properly asserted by Buyer under Section 9.2(aand/or Remediation Amount (the “Environmental Disputed Matters”) or any Environmental Defect Amount with respect to such an alleged Environmental Defect (each, a “Disputed Environmental Matter”), then (i) the Assets subject to the Disputed Environmental Matter shall not be assigned to Buyer at Closing, (ii) such Assets shall be retained by Seller and deemed to be “Excluded Assets” for all purposes hereunder unless and until such Disputed Environmental Matter is agreed upon by the Parties or is resolved pursuant to this Section 9.3, (iii) subject 9.4(d). The Parties agree to attempt to initially resolve all disputes through good faith negotiations. If the Parties cannot resolve disputes regarding Environmental Disputed Matters on or before Closing and Seller elects the remedy in Section 9.4(a9.4(c)(iii), the Closing Payment shall proceed and the Allocated Value of all or that portion of the Purchased Asset alleged to be affected by the Environmental Defect (“Environmental Disputed Amount”) shall be reduced by the aggregate Allocated Values of such Assets at Closing and (iv) subject to Section 10.1 and Section 10.3, the Closing will occur as to the remainder of the Assets. Upon the agreement with respect to or final resolution of any Disputed Environmental Matter pursuant to this Section 9.3, subject to Buyer’s right placed in escrow pursuant to Section 9.2(d), (A) all such affected Assets that were not assigned 11.2. If arbitration to Buyer at Closing resolve Environmental Disputed Matters pursuant to subpart ARTICLE XVI is not initiated by Purchaser within fifteen (i) of this Section 9.3 shall again be considered “Assets” hereunder (and no longer considered “Excluded Assets”) and Seller shall convey such affected Assets to Buyer at an agreed upon time and location (but not later than three (315) Business Days after such resolutionClosing, no downward adjustment shall be made for the Environmental Disputed Amounts in the Final Settlement Statement and Purchaser shall be deemed to have assumed responsibility for all costs and expenses attributable to the Remediation of the applicable Environmental Defect (net to the Purchased Assets) and all Liabilities (a “Subsequent Closing”net to the Purchased Assets), including Environmental Liabilities, with respect thereto, and Purchaser’s obligations with respect to the foregoing shall be deemed to constitute part of the Assumed Obligations. Within five (5) Business Days after the Arbitrator’s decision as to the existence and scope of an Environmental Defect and/or Remediation Amount, Seller shall elect, at its sole option, the remedy in a manner consistent with the provisions either subparagraph (i) or (ii) of Section 10.2 9.4(c) of this Agreement and Section 10.4 applicable to the Assets to be conveyed to Buyer notify Purchaser in such Subsequent Closing, and (B) contemporaneously with such conveyance, Buyer shall pay to Seller the Allocated Value writing of such Assets (as adjusted pursuant to Section 3.2 and Section 3.3) by wire transfer election. Any post-Closing resolution of immediately available fundsthe Environmental Disputed Matters shall be reflected in the Final Settlement Statement.

Environmental Dispute Resolution. (a) If, prior to Closing, The Parties shall resolve disputes concerning the Parties are unable to agree on a resolution associated with any dispute regarding the existence, cure or remediation of any alleged Environmental Defect that was timely and properly asserted by Buyer under Section 9.2(a) or any Environmental Defect Amount with respect to such an alleged Environmental Defect (each, a “Disputed Environmental Matter”), then (i) the Assets subject to the Disputed Environmental Matter shall not be assigned to Buyer at Closing, (ii) such Assets shall be retained by Seller and deemed to be “Excluded Assets” for all purposes hereunder unless and until such Disputed Environmental Matter is agreed upon by the Parties or is resolved following matters pursuant to this Section 9.35.4: (a) the existence and scope of an Environmental Defect or the Remediation Costs, (iiib) subject the Remediation Costs of that portion of the Emerald Asset affected by an Environmental Defect and (c) the adequacy of Emerald’s cure of an Environmental Defect and Kxxx’x reasonable satisfaction thereof (the “Environmental Disputed Matters”). The Parties agree to attempt to initially resolve all disputes through good faith negotiations. If Emerald elects to challenge the existence and/or scope of the Environmental Defect and/or the Remediation Cost pursuant to this Section 9.4(a5.4 (the “Environmental Disputed Matters”), and such dispute has not been resolved as of the Closing Payment Date, then the Emerald Purchase Price shall be reduced by the aggregate Allocated Values Value of such Assets Environmental Defect Property (such amount, the “Environmental Escrow Amount”), and, at Closing Closing, Kxxx shall pay such Environmental Escrow Amount to the Escrow Agent, as part of the Additional Escrow Amount. If the Parties cannot resolve disputes regarding the Environmental Disputed Matters within forty-five (45) days following Closing, the Environmental Disputed Matters will be finally determined by binding arbitration before an independent arbitrator appointed by the Parties, provided that the independent arbitrator shall be qualified by education, knowledge of, and (iv) experience with environmental defects affecting the types of properties which are subject to Section 10.1 and Section 10.3, the Closing will occur as or relate to the remainder disputed Environmental Defect or Environmental Disputed Matters. The arbitrator shall employ such independent attorneys and/or other consultants as the arbitrator deems necessary, with the costs of such employment to be shared equally by Emerald and Kxxx. On or before thirty (30) days after Closing, Emerald and Kxxx shall present their respective positions in writing to the arbitrator, together with such evidence as each Party deems appropriate. The arbitrator shall be instructed to resolve the dispute through a final decision within twenty (20) days after submission of the Assetsmatters in dispute. Each Party shall pay half of any costs or fees assessed or charged by the arbitrator acting pursuant to this Article 5. Upon the agreement with respect to or final resolution of any Environmental Disputed Matter, the Escrow Agent shall deliver the applicable Environmental Matter pursuant to this Section 9.3, subject to Buyer’s right pursuant to Section 9.2(d), (A) all such affected Assets that were not assigned to Buyer at Closing pursuant to subpart (i) Escrow Amount out of this Section 9.3 shall again be considered “Assets” hereunder (and no longer considered “Excluded Assets”) and Seller shall convey such affected Assets to Buyer at an agreed upon time and location (but not later than three (3) Business Days after such resolution) (a “Subsequent Closing”) the Additional Escrow Amount in a manner consistent accordance with the provisions decision of Section 10.2 and Section 10.4 applicable to the Assets to be conveyed to Buyer in such Subsequent Closing, and (B) contemporaneously with such conveyance, Buyer shall pay to Seller the Allocated Value of such Assets (as adjusted pursuant to Section 3.2 and Section 3.3) by wire transfer of immediately available fundsarbitrator.

Environmental Dispute Resolution. (a) IfWhitehorse, on behalf of the Whitehorse Sellers, Siltstone II, on behalf of the Siltstone Sellers, and Buyer shall attempt to agree on all Environmental Defects and Remediation Amounts prior to Closing. If Whitehorse, on behalf of the Parties Whitehorse Sellers, Siltstone II, on behalf of the Siltstone Sellers, and Buyer are unable to agree on a resolution associated with any dispute regarding the existence, cure or remediation of any alleged Environmental Defect that was timely and properly asserted by Buyer under Section 9.2(a) or any Environmental Defect Amount with respect to such an alleged Environmental Defect (each, a “Disputed Environmental Matter”), then (i) the Assets subject to the Disputed Environmental Matter shall not be assigned to Buyer at Closing, (ii) such Assets shall be retained by Seller and deemed to be “Excluded Assets” for all purposes hereunder unless and until such Disputed Environmental Matter is agreed upon by the Parties or is resolved pursuant to this Section 9.3, (iii) subject to Section 9.4(a), the Closing Payment shall be reduced by the aggregate Allocated Values of such Assets at Closing and (iv) subject to Section 10.1 and Section 10.3, the Closing will occur as to the remainder of the Assets. Upon the agreement with respect to or final resolution of any Disputed Environmental Matter pursuant to this Section 9.3, subject to Buyer’s right rights pursuant to Section 9.2(d10.3(b)(ii), (A) all such affected Assets that were not assigned shall be conveyed to Buyer at Closing and Buyer shall pay the amount equal to Buyer’s estimate of the Remediation Amount attributable to such unresolved Environmental Defects claimed by Buyer into the Escrow Account and the Environmental Defects and/or Remediation Amounts in dispute shall be exclusively and finally resolved by arbitration pursuant to subpart (i) of this Section 9.3 10.4. There shall again be considered “Assets” hereunder a single arbitrator, who shall be an environmental attorney with at least fifteen (15) years’ experience in environmental matters involving oil and no longer considered “Excluded Assets”gas producing properties in the regional area in which the affected Assets are located and shall not have worked as an employee or outside counsel for any Party or its Affiliates during the five (5) year period preceding the arbitration or have any financial interest in the dispute, as selected by mutual agreement of Buyer, on the one hand, and Whitehorse (on behalf of the Whitehorse Sellers) and Seller Siltstone II (on behalf of the Siltstone Sellers), jointly, on the other hand, within fifteen (15) days after the Closing Date, and absent such agreement, by the Houston, Texas office of the American Arbitration Association (the “Environmental Arbitrator”). The arbitration proceeding shall convey such affected Assets to Buyer at an agreed upon time be held in Houston, Texas and location (but not later than three (3) Business Days after such resolution) (a “Subsequent Closing”) shall be conducted in a manner consistent accordance with the provisions Commercial Arbitration Rules of the American Arbitration Association, to the extent such rules do not conflict with the terms of Section 10.2 10.3. Each of Buyer, on the one hand, and Section 10.4 applicable Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers), jointly, on the other hand, shall submit their respective positions and evidence to the Assets Environmental Arbitrator within fifteen (15) days after selection of the Environmental Arbitrator. The Environmental Arbitrator’s determination shall be made within twenty (20) days after submission of the matters in dispute and shall be final and binding upon the Parties, without right of appeal. The Environmental Arbitrator shall make a separate determination with respect to be conveyed to Buyer in such Subsequent Closingthe existence of each asserted Environmental Defect and/or Remediation Amount, and shall be limited to awarding only Whitehorse and Siltstone II’s joint or Buyer’s final proposed Remediation Amounts exchanged by the Parties as provided above. In making his or her determination, the Environmental Arbitrator shall be bound by the relevant rules set forth in this Article X and, subject to the foregoing, may consider such other matters as in the opinion of the Environmental Arbitrator are necessary or helpful to make a proper determination. The Environmental Arbitrator shall act as an expert for the limited purpose of determining the specific disputed Environmental Defects and/or Remediation Amounts submitted by either Buyer or Whitehorse (Bon behalf of the Whitehorse Sellers) contemporaneously and Siltstone II (on behalf of the Siltstone Sellers) jointly, and may not award damages, interest or penalties to either Party with such conveyancerespect to any matter, but shall award to the prevailing Party its arbitration costs and attorneys’ fees. Sellers, jointly, on the one hand, and Buyer, on the other hand, shall each bear one-half of the costs and expenses of the Environmental Arbitrator. Within ten days of the final resolution of any dispute submitted to the Environmental Arbitrator, Buyer shall pay be entitled to Seller withdraw from the Allocated Value Escrow Account the amount, if any, so awarded by the Environmental Arbitrator to Buyer plus all earnings thereof, with respect to any Environmental Defect resolved in Buyer’s favor and the balance of such Assets (as adjusted pursuant the escrow attributable to Section 3.2 and Section 3.3) by wire transfer of immediately available fundsthe resolved Environmental Defect shall be paid to Sellers.